Ipswich City Council v Brisbane Skydiving Centre Pty Ltd & Scoffell; Brisbane Skydiving Centre v Ipswich City Council

[2011] QPEC 24

[2011] QPEC 24

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 833 of 2010

IPSWICH CITY COUNCIL	Applicant
and
BRISBANE SKYDIVING CENTRE PTY LTD and BRIAN ERNEST SCOFFELL	Respondents

P & E Appeal No 525 of 2010

BRISBANE SKYDIVING CENTRE             Appellant

and

IPSWICH CITY COUNCIL                  Respondent

BRISBANE

..DATE 04/03/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 497

Extension of time by some months for commencement of developer appeal against refusal of his development application - "timely" appeal to Building and Dispute Resolution Committee which held it had no jurisdiction - Council supported extension of time, also extension of time for notifying appeal to Department of Infrastructure and Planning
HIS HONOUR:  The court makes an order in terms of the

initialled draft under section 497 of the Sustainable Planning
Act 2009.

All of the circumstances are favourable for the appellant,
Mr Lin, whose appeal, filed on the 11th of September 2010,
against refusal of a development application he lodged with the
respondent Council came terribly late.  The appeal should have
been commenced in April 2010.

An appeal against the Council's decision was commenced in time
before the Building and Development Dispute Resolution
Committee, which thereafter determined, in accordance with
submissions made by the Council to it, that there was no
jurisdiction to entertain the appeal.

Its decision came out on the 26th of August 2010, and was
accompanied by indications to Mr Lin that if he wished to
appeal the decision of the Committee he had 20 business days
to commence a proceeding in the court.  Within the 20 business
days he did commence this appeal but it's not against the
Committee's decision, it’s simply against the Council's refusal as a conventional developer appeal.

Mr Lin and those advising him accepted that the Committee's
decision was correct, so there was never any point in appealing
that decision.

An observation could be made that this appeal could perhaps
have been started earlier than it was after the 26th of August
2010.  There were some extenuating circumstances which include
Mr Lin's first language not being English and his having some
difficulties in consequence.

Another most important factor is that the Council respondent
is entirely supportive of the application.  The development
application was impact assessable but there were no
submissions, which gives the court some comfort in proceeding
on the basis that there aren't potential parties whose
interests or concerns might have been affected.

It's contrary to the spirit of the legislation and the
practice of court to be granting such a long extension of time for appealing, but
each situation should be judged on its own merits and those
strongly support the making of the order sought today.

A further indulgence is required, for giving notice of the appeal
to the Department of Infrastructure and Planning, until 14th of
February 2011.  Once again, it's regrettable that that step
was overlooked at the time when it should have happened, well
back into last year, but giving the notice has occurred now
without attracting any interest from the Department.

Order as per initialled draft.

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